The 16th Annual Friedrich A. von Hayek Lecture: The Origins of System in Property Law

Thursday, March 23, 2023

6:00 – 7:45 pm Reception to Follow

Lipton Hall (108 West Third Street)

Presented by Henry E. Smith, Fessenden Professor of Law, Harvard Law School

Please RSVP here

Henry E. Smith is the Fessenden Professor of Law at Harvard Law School, where he directs the Project on the Foundations of Private Law. Smith has written primarily on the law and economics of property, intellectual property, and remedies, with a focus on how property-related institutions lower information costs and constrain strategic behavior. He teaches primarily in the areas of property, intellectual property, equity, restitution, and remedies. His books include The Oxford Introductions to U.S. Law: Property (2010, coauthored with Thomas W. Merrill), Property: Principles and Policies (3th ed., 2022, coauthored with Thomas W. Merrill & Maureen E. Brady), and Principles of Patent Law (7th ed., 2018, co-authored with John M. Golden, F. Scott Kieff, and Pauline Newman). He is the co-editor of The Research Handbook on the Economics of Property Law (2011, with Kenneth Ayotte), Philosophical Foundations of Property Law (2013, with James Penner), Perspectives on Property Law (4th ed., 2014, with Robert C. Ellickson and Carol M. Rose), Equity and Law: Fusion and Fission (2019, with John C.P. Goldberg & P.G. Turner), Philosophical Foundations of the Law of Equity (2020, with Dennis Klimcuk & Irit Samet), and The Oxford Handbook of the New Private Law (2020, with Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly & Emily Sherwin).

This event has been approved for 1.5 New York State CLE credits in the category of Areas of Professional Practice. The credit is both transitional and non-transitional; it is appropriate for both experienced and newly admitted attorneys.

The idea of system in law has fallen on hard times. For the last century, legal thought and practice increasingly reduced law to a collection of separable rules that can be manipulated in isolation. Such rules would be the plastic medium which legal designers would shape to respond to external criteria, whether it be efficiency, fairness, or social justice. Drawing on then-new tools of systems theory, Hayek offered an alternative picture of law as a spontaneous order, by analogy to other social orders like the market and custom. This paper will argue that the tools of system theory also point to sources of order within the law: although law is not the deductive machine in the realist caricature, it is a loosely interconnected system of interlocking concepts that produces emergent properties of efficiency and justice (or their opposites) at the societal level. This kind of system is neither wholly spontaneous nor fully designed. Its stability, promotion of freedom, and facilitation of human coordination do not require exclusive reliance on rules or a purely custom-like spontaneous order. Through illustrations from possession-related concepts and the relation of equity to law, Professor Smith will argue that law can mix formalism and context – and stability and flexibility – in creative ways and that the rule of law ultimately depends on a legal culture further upstream from law.